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Wednesday, June 14, 2017

Attorneys
general for D.C. and Maryland filed a lawsuit against President Trump
on June 12, alleging that he violated anti-corruption clauses in the
Constitution by retaining ownership of his company as president. (Video: Amber Ferguson,Jenny Starrs/Photo: Michael Robinson Chavez/The Washington Post)

Attorneys general for the District of Columbia and the state of Maryland
sued President Trump on Monday, alleging that he has violated
anti-corruption clauses in the Constitution by accepting millions in
payments and benefits from foreign governments since moving into the
White House.

The lawsuit, the first of its kind brought by government entities,
centers on the fact that Trump chose to retain ownership of his company
when he became president. Trump said in January that he was shifting his
business assets into a trust managed by his sons to eliminate potential
conflicts of interests.

But D.C. Attorney General Karl A. Racine (D) and Maryland Attorney
General Brian E. Frosh (D) say Trump has broken many promises to keep
separate his public duties and private business interests. For one, his
son Eric Trump has said the president would continue to receive regular
updates about his company’s financial health.

The lawsuit, a signed copy of which Racine and Frosh provided to The
Washington Post on Sunday night, alleges “unprecedented constitutional
violations” by Trump. The suit says Trump’s continued ownership of a
global business empire has rendered the president “deeply enmeshed with a
legion of foreign and domestic government actors” and has undermined
the integrity of the U.S. political system.

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“Fundamental to a President’s fidelity to [faithfully execute his oath
of office] is the Constitution’s demand that the President ...
disentangle his private finances from those of domestic and foreign
powers. Never before has a President acted with such disregard for this
constitutional prescription.”
The suit could open a new front for Trump as he navigates investigations
by special counsel Robert S. Mueller III and congressional committees
of possible collusion between his associates and the Russian government
during the 2016 presidential campaign.

If a federal judge allows the case to proceed, Racine and Frosh say, one
of the first steps will be to demand through the discovery process
copies of Trump’s personal tax returns to gauge the extent of his
foreign business dealings. That fight would most likely end up before
the Supreme Court, the two said, with Trump’s attorneys having to defend
why the returns should remain private.

“This case is, at its core, about the right of Marylanders, residents of
the District of Columbia and all Americans to have honest government,”
Frosh said. To fully know the extent of Trump’s constitutional
violations “we’ll need to see his financial records, his taxes that he
has refused to release.”

Racine said he felt obligated to sue Trump in part because the
Republican-controlled Congress has not taken the president’s apparent
conflicts seriously.

“We’re getting in here to be the check and balance that it appears Congress is unwilling to be,” he said.

The constitutional question D.C. and Maryland will put before a federal
judge is whether Trump’s business holdings amount to violations of parts
of the Constitution known as the foreign and domestic emoluments
clauses.

To guard against foreign countries gaining sway over the new republic’s
ambassadors in the late 1700s, drafters of the Constitution prohibited
any “Person holding any Office of Profit or Trust” from accepting “any
present, Emolument, Office or Title, of any kind whatever, from any
King, Prince, or foreign State.”

In another part of the Constitution, framers sought to prevent a
president from favoring one state over another, forbidding him from
receiving any gift or emolument from a state and, instead, only the
compensation approved by Congress.

The lawsuit, filed in U.S. District Court for the District of Maryland,
is the latest and most significant legal challenge to Trump over the
issue of emoluments. The first was filed in January by Citizens for Responsibility and Ethics in Washington, a D.C.-based watchdog group. In March, a D.C. restaurant sued Trump,
alleging the new Trump International Hotel in D.C. benefits from unfair
advantages because of its close association with the president. And
last week, a group of Democratic members of Congress said they plan to file suit soon. Each, however, has faced legal hurdles over standing to sue the president.

In the Trump administration’s most detailed response yet, the Department
of Justice filed a 70-page legal brief on Friday arguing the CREW
lawsuit should be dismissed. The administration said Trump’s businesses
are legally permitted to accept payments from foreign governments while
he is in office. The filing held up the lack of past complaints — going
all the way back to farm produce sold abroad by George Washington — to
assert that market-rate payments for Trump’s real estate, hotel and golf
companies do not constitute emoluments as defined by the Constitution.

Racine and Frosh, however, argue Trump’s violations are on scale never
seen before and that both D.C. and Maryland are being adversely affected
by the Trump hotel near the White House.

After hiring staff and holding events to cater to foreign diplomats, the
Embassy of Kuwait held an event at the hotel, switching its initial
booking from the Four Seasons. Saudi Arabia, the destination of Trump’s
first trip abroad, also booked rooms at the hotel through an
intermediary on more than one occasion since Trump’s inauguration.
Turkey held a state-sponsored event there last month. And in April, the
ambassador of Georgia stayed at the hotel and tweeted his compliments.
Trump himself has appeared at the hotel and greeted guests repeatedly
since becoming president.

As a result, the hotel may be drawing business away from the
taxpayer-owned D.C. convention center and one in nearby Maryland
subsidized by taxpayers, Frosh and Racine argue.

Norman Eisen, who served as the chief White House ethics lawyer for
President Barack Obama and is CREW’s board chairman, said jurisdictions
such as the District and Maryland are among the “most perfect
plaintiffs” to sue over emoluments because they have a say in making
sure the Constitution is being enforced.

“In the emoluments clauses, we have these ancient air bags that were
placed in the Constitution by the framers that are now being deployed,”
said Eisen, whose nonprofit has been advising the District and Maryland
on their suit. “Trump is the framers’ worst-case scenario; a president
who would seize office and attempt to exploit his position for personal
financial gain with every governmental entity imaginable, across the
United States or around the world.”

On the domestic side, the suit alleges Trump has received
unconstitutional financial favors from the U.S. government. It says the
U.S. General Services Administration, which handles federal real estate,
wrongly allowed Trump’s company to continue to lease the Old Post
Office building, where Trump built his D.C. hotel, even though a clause
in the contract said no elected official could remain on the lease.

The GSA initially said Trump would have to fully divest from the hotel
after the election. But after Trump proposed increasing GSA’s budget,
the suit says, the agency issued a letter saying Trump was in full
compliance.

The suit also alleges that Trump is violating domestic emoluments by
creating a situation in which states feel compelled to compete for
Trump’s favor, perhaps by offering zoning exemptions, waivers or other
benefits to help his businesses.

After initially saying the Trump organization would not pursue new deals
while he was in office, Trump’s sons announced last week that the
company would begin building a network of new hotels in mostly red
states that he won in last year’s election.

The suit by D.C. and Maryland says the two jurisdictions are faced with
an “intolerable dilemma”: to either go along with the Trump Organization
getting special treatment, including possible lost local revenue, or
“deny such requests and be placed at a disadvantage vis-à-vis states and
other government entities that have granted or will agree to such
concessions.”

The District and Maryland file the suit at great peril, Racine and Frosh
allege, because the two have a disproportionately large percentage of
federal workers and could be acutely affected by federal budget cuts
that Trump could seek as retribution.

But Maryland argues that it has special standing to sue. As one of the
original states that approved the Constitution, Maryland gave up a
clause in its own state declaration that had required its governors not
to take any gifts from foreign governments or other states.